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Court of Criminal Appeal 3 December 2004

Regina v Graham Edward Mailes

[2004] NSWCCA 394

Also reported as (2004) 62 NSWLR 181 (2004) 150 A Crim R 365
Homicide
CRIMINAL LAW MENTAL HEALTH ACCUSED UNFIT TO BE TRIED SPECIAL HEARING FIXING LIMITING TERM PRINCIPLES

Citation: Regina v Graham Edward Mailes [2004] NSWCCA 394
Court: NSW Court of Criminal Appeal
Date: 3 December 2004
Judge(s): Dunford J, Adams J, Howie J

Background

The applicant was found unfit to be tried for the murder of a 19-year-old woman in Albury in March 1996. Following that finding, a special hearing was conducted before Wood CJ at CL and a jury in the Supreme Court. In April 2003 the jury returned a verdict under the Mental Health (Criminal Procedure) Act 1990 that, on the limited evidence available, the applicant had committed the murder.

In August 2003, Wood CJ at CL nominated a limiting term of 25 years. A limiting term is the maximum period a person found unfit to stand trial may be detained following a special hearing verdict. The trial judge declined to fix a non-parole period as part of that term, following earlier Court of Criminal Appeal authority.

The applicant sought leave to appeal against the 25-year limiting term on two grounds: that the term itself was manifestly excessive, and that, because no non-parole period could be set, the limiting term should have been reduced to reflect that disadvantage.

  • Whether the limiting term of 25 years nominated by Wood CJ at CL was manifestly excessive given the applicant's significant intellectual disability and disturbed background.
  • Whether, in the absence of any provision for a non-parole period within a limiting term, the head sentence equivalent should be reduced to compensate for that structural difference from an ordinary criminal sentence.

Decision

On the question of manifest excess, the Court found no error in the 25-year term. The offence was a brutal killing of a young woman involving a throat wound, post-mortem dragging of the body, and an attempt to access her bank account. Wood CJ at CL had found the applicant would remain a danger to the community without close supervision and medication, and his intellectual disability did not diminish the gravity of the offending to a degree that rendered the term excessive.

On the second ground, the Court confirmed the statutory framework requires a limiting term to be set by reference to the head sentence that would have been imposed had the special hearing been an ordinary criminal trial against a fit accused. The absence of a non-parole period does not affect how that head sentence equivalent is calculated. There is no logical or statutory basis for reducing the limiting term simply because the regime contains no provision for parole.

The Court also rejected the submission that the absence of a non-parole period caused real unfairness. It observed that the same factors that made early release under the limiting term regime very unlikely would equally have impeded any parole application under a conventional sentence, given the statutory criteria for parole. The two regimes serve different objects and carry different consequences, as the Court had previously explained in R v Mitchell.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under the Mental Health (Criminal Procedure) Act 1990, a limiting term must be set by reference to the head sentence that would have been imposed had the special hearing been an ordinary criminal trial against a fit accused.
  • No non-parole period attaches to a limiting term, following the Court of Criminal Appeal's earlier decision in R v Mitchell (1999) 108 A Crim R 85, which the Court reaffirmed here.
  • The absence of a non-parole period does not require any downward adjustment to the limiting term itself; the structural difference between the two regimes does not translate into an automatic sentencing discount.
  • In dismissing the appeal, the Court of Criminal Appeal held that any apparent unfairness from ineligibility for parole was more illusory than real, because the applicant's circumstances would have substantially impeded parole in any event.
  • A verdict under s 22(1)(c) of the Mental Health (Criminal Procedure) Act 1990 constitutes a qualified finding of guilt and is not a conviction in the ordinary sense, but it does constitute a "conviction" and the limiting term a "sentence" for the purposes of an appeal under the Criminal Appeal Act 1912.

Legislation and Cases Referenced

Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Mental Health Act 1990 (NSW)
- Sentencing Act (NSW)

Cases:
- R v Mitchell (1999) 108 A Crim R 85
- R v Mailes (2001) 53 NSWLR 25
- R v Mailes [2003] NSWSC 707
- R v MM (2002) 135 A Crim R 216
- RH McL v The Queen [2000] 203 CLR 452
- R v Bedford (1986) 5 NSWLR 711
- R v Gilmore (1979) 1 A Crim R 416
- R v Boyle (unreported, 18 September 1992)